' (Being an Appeal from the Judgment and Sentence at the Principal Magistrate’s Court in Keroka in MC(SO) No. E010 of 2020 delivered by Hon. S.K. Arome, Senior Resident Magistrate on 13 th January 2022.)
The Appellant was convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the charge were that on the 15 th day of December 2020 at Kiangeni area in Borabu Sub-County within Nyamira County, intentionally caused his penis to penetrate the anus of G.K. (particulars withheld), a child aged 5 years.
A summary of the prosecutions case was as follows: - The victim (PW1), G.K (particulars withheld), gave an unsworn testimony after voire dire. She stated that a man waylaid her and defiled her by penetrating her vagina. She later informed her mother (PW2).
PW2, the victim’s mother, testified that she found her child with bloodstains on the anus. She reported the matter to police and escorted the victim to the hospital. PW2 did not personally identify the Appellant but relied on information from one Naomi and the complainant. She produced a clinic card which showed that the victim was born on 8 th March 2015.
PW3, the Clinical Office e xamined the child and observed that she had redness, looseness, and swelling of anus. Laboratory test results confirmed that the victim had spermatozoa in her genitalia. He produced medical documents (treatment notes, P3, PRC form) as exhibits.
PW4, the Investigating Officer, received the report, escorted the victim to the hospital. He stated that the victim identified the Appellant whose arrest was facilitated by community policing.
When placed on his defence, DW1 (Appellant) denied the offence and stated that he was arrested from his farm, taken to the police post and falsely implicated after the complainant alleged that he had defiled her.
At the close of the trial, the Appellant was convicted on the main count and sentenced to serve 15 years’ imprisonment. Aggrieved by both the conviction and sentence, the Appellant filed the instant in which he raised grounds of unsafe conviction due to contradictions in the prosecution’s case and excessive sentence.
The Appeal was canvassed by way of written submissions which I have considered. The prosecution conceded to the appeal on the basis that all the ingredients of the offence, particularly, the identification of the Appellant as the perpetrator of the offence, was not proved to the required standard. The concession by the prosecution notwithstanding, the court is still minded to consider if the prosecution established the ingredients of the main charge against the Appellant to the required standard.
As a first appellate court, I am obliged to re-evaluate the evidence afresh and draw my own conclusions, while bearing in mind I neither saw nor heard the witnesses. (See Okeno vs. Republic [1972] EA 32 ; Kiilu & Another vs. Republic [2005] 1 KLR 174 ).
Analysis and Determination
I have carefully considered the record of appeal and the parties rival submissions. I find that the main issues for determination are; whether the prosecution proved the ingredients of defilement beyond reasonable doubt and whether the sentence imposed on the Appellant was unlawful and excessive.
Proof of the Offence
Section 8 (2) of the Sexual Offences Act (the Act) provides as follows:
8. Defilement
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
From the above provision, it is clear that the offence of defilement is established through proof of three ingredients namely; the minority age of the victim, penetration and positive identification of the perpetrator.
(See Charles Wamukoya Karani vs. Republic , Criminal Appeal No. 72 of 2013 [2015] eKLR ).
In Francis Omuroni vs. Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 , it was held thus: -
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim''s parents or guardian and by observation and common sense ….”
PW4 produced the victim’s clinic card (P.Exh4) which indicated that she was born on 8 th March 2015 at the time of commission of the offence. I find that the ingredient of age was proved as the victim was 5 years old at the time she was defiled.
Turning to the second ingredient defilement, Section 2 of the Act defines penetration as follows: -
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
Section 2 of the Act defines genital organs are as follows; -
"genital organs" includes the whole or part of male or female genital organs and for purposes of this Act includes the anus;
The prosecution was therefore required to tender evidence to prove that the minor was penetrated in her anus as indicated in the charge sheet. The minor however testified that her assailant inserted his penis into her vagina. The victim testified as follows: -
“….He removed his trouser. I was standing. I was wearing a panty, skirt. He removed my panty. He did bad manners to me. (She points as her vagina). He did bad manners to me ‘here’ vagina. He inserted his thing into my vagina (pointing). I lied down on the grass. He lied on me. He inserted his thing onto my vagina…”
The Clinical Officer, on the other hand, testified that the minor had tenderness on her anal area which was reddish, swollen and the rectal and sphincter muscle loose and swollen. The minor’s mother PW2 stated that her child had blood stains on her anus area.
My finding is that the minor’s testimony was clearly at variance with the medical evidence and her mother’s testimony. The trial court did not expressly address the issue of the discrepancy in the victim’s testimony. The question that this court has to grapple with is whether the discrepancy in the testimonies of the prosecution witnesses over the exact place of penetration was fatal to the prosecution’s case. in addressing this issue, the court notes that the victim gave an unsworn evidence after a voire dire examination in which the trial court found that she did not understand the oath. Under the proviso to Section 124 of the Evidence Act, a court may convict on the evidence of a child victim without corroboration if it records reasons for believing the child is truthful.
In the present case, the record shows that the trial court did not disclose or record any specific reasons for believing the child. In Godfrey Odhiambo & Another vs. Republic [2014] eKLR , the Court of Appeal underscored that reasons must be recorded if the court relies on uncorroborated child testimony.
Turning to the third ingredient of identification I find that identification of the Appellant was not proved and this is the reason why the prosecution conceded to the appeal. I note that the victim stated that she did not know the Appellant. While this court appreciates the tender age of the minor and the fact that she may have had difficulties identifying the Appellant as the person who defiled her, it was incumbent upon the Prosecution to tender evidence to prove identification and to establish a nexus between the Appellant and the crime.
I further note that PW2 the victim’s mother stated that she did not see the Appellant on the material day. She claimed that one Naomi identified the Appellant as the person she saw luring the victim on the material date. I however note that the said Naomi, though a material witness. was however not called to corroborate the testimony of PW2. In Oloro and Daltanyi vs. Reginam [1956] 23 EACA 49 it was held thus: -
“Prosecution have a duty to call material witnesses. If they fail, the presumption is that if the evidence had been called that evidence would have been unfavourable to prosecution.”
I find that failure call Naomi, as a witness, rendered a fatal blow to the Prosecution’s case and that the Investigating Officer’s claim that the victim identified the Appellant by name and appearance was not supported by the evidence of the victim who categorically stated that she did not know the Appellant.
There was also a critical issue of timeline anomaly created by the testimony of PW3 who testified that he examined the victim on 6 th December 2020 and completed the P3 Form on 10 th December 2020, whereas the charge sheet indicates that the incident happened on 15 th December 2020 and PW4 recorded a report on 16 th December 2020. This means the examination predated the alleged offence by 5–9 days, an inconsistency that the trial court did not reconcile. I further note that there was no clarification on whether these dates were clerical errors, whether there was an earlier assault, or whether the date indicated on the charge sheet was inaccurately laid. It is my finding that chronology of events is a critical issue where medical corroboration forms the backbone of penetration and timing. (See Philip Nzaka Watu vs. Republic [2016] eKLR where it was held that material contradictions that go to the root of the charge cannot be ignored). My finding is that a medical examination cannot corroborate an event that, on the record, had not yet occurred.
It is my further finding that the medical evidence and the evidence on identification was not full-proof and that the conviction, by the trial court, was therefore unsafe.
Having determined that the conviction was unsafe, I find that the issue of the legality of the sentence passed by the trial court is moot. Suffice is to say that under Section 8(2) of the Act, the sentence for defilement of a child aged 11 years or less is life imprisonment. This means that trial court’s sentence of 15 years was illegal in the context of the statute. Jurisprudence on mandatory minimum sentences has evolved, but as I have already found that the conviction was unsafe, the sentence cannot stand and I refrain from broader constitutional analysis.
Consequently, and having regard to the findings and observations that I have made in this judgment, I allow the instant appeal. I therefore quash the conviction and set aside the sentence passed by the trial court. I direct that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.
It is so ordered.
'
The Appellant was convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the charge were that on the 15 th day of December 2020 at Kiangeni area in Borabu Sub-County within Nyamira County, intentionally caused his penis to penetrate the anus of G.K. (particulars withheld), a child aged 5 years.
A summary of the prosecutions case was as follows: - The victim (PW1), G.K (particulars withheld), gave an unsworn testimony after voire dire. She stated that a man waylaid her and defiled her by penetrating her vagina. She later informed her mother (PW2).
PW2, the victim’s mother, testified that she found her child with bloodstains on the anus. She reported the matter to police and escorted the victim to the hospital. PW2 did not personally identify the Appellant but relied on information from one Naomi and the complainant. She produced a clinic card which showed that the victim was born on 8 th March 2015.
PW3, the Clinical Office e xamined the child and observed that she had redness, looseness, and swelling of anus. Laboratory test results confirmed that the victim had spermatozoa in her genitalia. He produced medical documents (treatment notes, P3, PRC form) as exhibits.
PW4, the Investigating Officer, received the report, escorted the victim to the hospital. He stated that the victim identified the Appellant whose arrest was facilitated by community policing.
When placed on his defence, DW1 (Appellant) denied the offence and stated that he was arrested from his farm, taken to the police post and falsely implicated after the complainant alleged that he had defiled her.
At the close of the trial, the Appellant was convicted on the main count and sentenced to serve 15 years’ imprisonment. Aggrieved by both the conviction and sentence, the Appellant filed the instant in which he raised grounds of unsafe conviction due to contradictions in the prosecution’s case and excessive sentence.
The Appeal was canvassed by way of written submissions which I have considered. The prosecution conceded to the appeal on the basis that all the ingredients of the offence, particularly, the identification of the Appellant as the perpetrator of the offence, was not proved to the required standard. The concession by the prosecution notwithstanding, the court is still minded to consider if the prosecution established the ingredients of the main charge against the Appellant to the required standard.
As a first appellate court, I am obliged to re-evaluate the evidence afresh and draw my own conclusions, while bearing in mind I neither saw nor heard the witnesses. (See Okeno vs. Republic [1972] EA 32 ; Kiilu & Another vs. Republic [2005] 1 KLR 174 ).
Analysis and Determination
I have carefully considered the record of appeal and the parties rival submissions. I find that the main issues for determination are; whether the prosecution proved the ingredients of defilement beyond reasonable doubt and whether the sentence imposed on the Appellant was unlawful and excessive.
Proof of the Offence
Section 8 (2) of the Sexual Offences Act (the Act) provides as follows:
8. Defilement
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
From the above provision, it is clear that the offence of defilement is established through proof of three ingredients namely; the minority age of the victim, penetration and positive identification of the perpetrator.
(See Charles Wamukoya Karani vs. Republic , Criminal Appeal No. 72 of 2013 [2015] eKLR ).
In Francis Omuroni vs. Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 , it was held thus: -
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim''s parents or guardian and by observation and common sense ….”
PW4 produced the victim’s clinic card (P.Exh4) which indicated that she was born on 8 th March 2015 at the time of commission of the offence. I find that the ingredient of age was proved as the victim was 5 years old at the time she was defiled.
Turning to the second ingredient defilement, Section 2 of the Act defines penetration as follows: -
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
Section 2 of the Act defines genital organs are as follows; -
"genital organs" includes the whole or part of male or female genital organs and for purposes of this Act includes the anus;
The prosecution was therefore required to tender evidence to prove that the minor was penetrated in her anus as indicated in the charge sheet. The minor however testified that her assailant inserted his penis into her vagina. The victim testified as follows: -
“….He removed his trouser. I was standing. I was wearing a panty, skirt. He removed my panty. He did bad manners to me. (She points as her vagina). He did bad manners to me ‘here’ vagina. He inserted his thing into my vagina (pointing). I lied down on the grass. He lied on me. He inserted his thing onto my vagina…”
The Clinical Officer, on the other hand, testified that the minor had tenderness on her anal area which was reddish, swollen and the rectal and sphincter muscle loose and swollen. The minor’s mother PW2 stated that her child had blood stains on her anus area.
My finding is that the minor’s testimony was clearly at variance with the medical evidence and her mother’s testimony. The trial court did not expressly address the issue of the discrepancy in the victim’s testimony. The question that this court has to grapple with is whether the discrepancy in the testimonies of the prosecution witnesses over the exact place of penetration was fatal to the prosecution’s case. in addressing this issue, the court notes that the victim gave an unsworn evidence after a voire dire examination in which the trial court found that she did not understand the oath. Under the proviso to Section 124 of the Evidence Act, a court may convict on the evidence of a child victim without corroboration if it records reasons for believing the child is truthful.
In the present case, the record shows that the trial court did not disclose or record any specific reasons for believing the child. In Godfrey Odhiambo & Another vs. Republic [2014] eKLR , the Court of Appeal underscored that reasons must be recorded if the court relies on uncorroborated child testimony.
Turning to the third ingredient of identification I find that identification of the Appellant was not proved and this is the reason why the prosecution conceded to the appeal. I note that the victim stated that she did not know the Appellant. While this court appreciates the tender age of the minor and the fact that she may have had difficulties identifying the Appellant as the person who defiled her, it was incumbent upon the Prosecution to tender evidence to prove identification and to establish a nexus between the Appellant and the crime.
I further note that PW2 the victim’s mother stated that she did not see the Appellant on the material day. She claimed that one Naomi identified the Appellant as the person she saw luring the victim on the material date. I however note that the said Naomi, though a material witness. was however not called to corroborate the testimony of PW2. In Oloro and Daltanyi vs. Reginam [1956] 23 EACA 49 it was held thus: -
“Prosecution have a duty to call material witnesses. If they fail, the presumption is that if the evidence had been called that evidence would have been unfavourable to prosecution.”
I find that failure call Naomi, as a witness, rendered a fatal blow to the Prosecution’s case and that the Investigating Officer’s claim that the victim identified the Appellant by name and appearance was not supported by the evidence of the victim who categorically stated that she did not know the Appellant.
There was also a critical issue of timeline anomaly created by the testimony of PW3 who testified that he examined the victim on 6 th December 2020 and completed the P3 Form on 10 th December 2020, whereas the charge sheet indicates that the incident happened on 15 th December 2020 and PW4 recorded a report on 16 th December 2020. This means the examination predated the alleged offence by 5–9 days, an inconsistency that the trial court did not reconcile. I further note that there was no clarification on whether these dates were clerical errors, whether there was an earlier assault, or whether the date indicated on the charge sheet was inaccurately laid. It is my finding that chronology of events is a critical issue where medical corroboration forms the backbone of penetration and timing. (See Philip Nzaka Watu vs. Republic [2016] eKLR where it was held that material contradictions that go to the root of the charge cannot be ignored). My finding is that a medical examination cannot corroborate an event that, on the record, had not yet occurred.
It is my further finding that the medical evidence and the evidence on identification was not full-proof and that the conviction, by the trial court, was therefore unsafe.
Having determined that the conviction was unsafe, I find that the issue of the legality of the sentence passed by the trial court is moot. Suffice is to say that under Section 8(2) of the Act, the sentence for defilement of a child aged 11 years or less is life imprisonment. This means that trial court’s sentence of 15 years was illegal in the context of the statute. Jurisprudence on mandatory minimum sentences has evolved, but as I have already found that the conviction was unsafe, the sentence cannot stand and I refrain from broader constitutional analysis.
Consequently, and having regard to the findings and observations that I have made in this judgment, I allow the instant appeal. I therefore quash the conviction and set aside the sentence passed by the trial court. I direct that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.
It is so ordered.
'